S T A T E   O F   N E W   Y O R K
________________________________________________________________________

                                  8078

                       2015-2016 Regular Sessions

                          I N  A S S E M B L Y

                              June 5, 2015
                               ___________

Introduced by M. of A. TENNEY -- read once and referred to the Committee
  on Health

AN  ACT  to amend the public health law, in relation to protecting pain-
  capable unborn children

  THE PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND  ASSEM-
BLY, DO ENACT AS FOLLOWS:

  Section  1.  This  act  may be cited as the "pain-capable unborn child
protection act".
  S 2. The legislature makes the following findings:
  (1) Pain receptors are present throughout the  unborn  child's  entire
body and nerves link these receptors to the brain's thalamus and subcor-
tical plate by no later than twenty weeks after fertilization.
  (2)  By  eight  weeks  after fertilization, the unborn child reacts to
touch. After twenty weeks, the unborn child reacts to stimuli that would
be recognized as painful if applied to an adult human.
  (3) In the unborn child, application of such painful stimuli is  asso-
ciated with significant increases in stress hormones known as the stress
response.
  (4)  Subjection  to  such painful stimuli is associated with long-term
harmful neurodevelopmental effects, such as  altered  pain  sensitivity,
and  possibly,  emotional, behavioral and learning disabilities later in
life.
  (5) For the purposes of surgery on unborn children,  fetal  anesthesia
is  routinely  administered  and is associated with a decrease in stress
hormones compared to their level when painful stimuli are applied  with-
out the anesthesia.
  (6)  The  position,  asserted by some medical experts, that the unborn
child is incapable of experiencing pain until a point later in pregnancy
than twenty weeks after fertilization predominantly rests on the assump-
tion that the ability to experience pain depends on the cerebral  cortex
and  requires  nerve  connections  between  the thalamus and the cortex.

 EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                      [ ] is old law to be omitted.
                                                           LBD11136-02-5
              

A. 8078                             2

However, recent medical research and analysis,  especially  since  2007,
provides strong evidence for the conclusion that a functioning cortex is
not necessary to experience pain.
  (7) Substantial evidence indicates that children born missing the bulk
of the cerebral cortex, those with hydranencephaly, nevertheless experi-
ence pain.
  (8) In adults, stimulation or ablation of the cerebral cortex does not
alter  pain  perception,  while  stimulation or ablation of the thalamus
does.
  (9) Substantial evidence indicates that structures used for pain proc-
essing in early development differ from those of adults, using different
neural elements available at specific times during development, such  as
the subcortical plate, to fulfill the role of pain processing.
  (10)  The  position,  asserted  by  some commentators, that the unborn
child remains in a coma-like sleep state that precludes the unborn child
experiencing pain is inconsistent with the documented reaction of unborn
children to painful stimuli and with the experience  of  fetal  surgeons
who had found it necessary to sedate the unborn child with anesthesia to
prevent  the unborn child from engaging in vigorous movement in reaction
to invasive surgery.
  (11) Consequently, there  is  substantial  medical  evidence  that  an
unborn  child is capable of experiencing pain by twenty (20) weeks after
fertilization. The Legislature has the constitutional authority to  make
this  judgment. As the United States Supreme Court has noted in Gonzales
v. Carhart, 550 U.S. 124, 162-64 (2007). "The Court has given state  and
federal  legislatures wide discretion to pass legislation in areas where
there is medical and scientific  uncertainty...See  Marshall  v.  United
States,  414  U.S.  417, 427 (1974) ('When Congress undertakes to act in
areas fraught with medical  and  scientific  uncertainties,  legislative
options  must  be  especially  broad.')...The law need not give abortion
doctors unfettered choice in the course of their medical  practice,  nor
should  it  elevate  their  status above other physicians in the medical
community....Medical uncertainty does  not  foreclose  the  exercise  of
legislative power in the abortion context any more than it does in other
contexts."
  (12)  It  is  the  purpose  of  the State to assert a compelling state
interest in protecting the lives of unborn children from  the  stage  at
which  substantial  medical  evidence indicates that they are capable of
feeling pain.
  (13) In enacting this legislation the state is not asking the  Supreme
Court  to  overturn  or replace its holding, first articulated in Roe v.
Wade and reaffirmed in Planned Parenthood of  Southeastern  Pennsylvania
v. Casey, that the state interest in unborn human life, which is "legit-
imate" throughout pregnancy, becomes "compelling" at viability.  Rather,
it  asserts  a  separate  and  independent  compelling state interest in
unborn human life that exists once the unborn child is capable of  feel-
ing  pain,  which  is asserted not in replacement of, but in addition to
the state's compelling state interest in protecting the lives of  unborn
children from the stage of viability.
  (14) The United States Supreme Court has established that the "consti-
tutional  liberty  of  the  woman  to have some freedom to terminate her
pregnancy...is not so unlimited...that from the outset the State  cannot
show  its  concern  for  the life of the unborn, and at a later point in
fetal development the State's interest in life has sufficient  force  so
that  the  right  of  the  woman  to  terminate  the  pregnancy  can  be

A. 8078                             3

restricted." Planned Parenthood of Southeastern Pennsylvania  v.  Casey,
505 U.S. 833, 869 (1992).
  (15)  The  Supreme Court decision upholding the Partial-Birth Abortion
Ban Act, Gonzales  v.  Carhart,  550  U.S.  124  (2007)  vindicated  the
dissenting  opinion  in  the  earlier  decision  that  had  struck  down
Nebraska's Partial-Birth Abortion Ban Act.  That  opinion  stated,  "{In
Casey}  We  held it was inappropriate for the Judicial Branch to provide
an exhaustive list of state interests implicated by abortion...Casey  is
premised on the States having an important constitutional role in defin-
ing their interests in the abortion debate. It is only with this princi-
ple   in   mind   that   {a  state's}  interests  can  be  given  proper
weight...States also have an interest in forbidding  medical  procedures
which,  in the State's reasonable determination, might cause the medical
profession or society as a whole to become insensitive, even disdainful,
to life, including life in the human fetus...A State may  take  measures
to  ensure the medical profession and its members are viewed as healers,
sustained by a compassionate and rigorous ethic  and  cognizant  of  the
dignity  and value of human life, even life which cannot survive without
the assistance of others." Stenberg v. Carhart,  350  U.S.  914,  958-59
(2000)(Kennedy, J., dissenting).
  (16)  Mindful of Leavitt v. Jane L., 518 U.S. 137 (1996), in which the
context of determining the severability of a  state  statute  regulating
abortion  in  the  United  States  Supreme  Court noted that an explicit
statement of  legislative  intent  specifically  made  applicable  to  a
particular statute is of greater weight than a general savings or sever-
ability  clause,  it  is the intent of the State that if any one or more
provisions, sections, subsections, sentences, clauses, phrases or  words
of  this act or the application thereof to any person or circumstance is
found to be unconstitutional, the same is hereby declared to be  severa-
ble  and  the balance of this act shall remain effective notwithstanding
such unconstitutionality. Moreover, the State  declares  that  it  would
have passed this act, and each provision, section, subsection, sentence,
clause, phrase or word thereof, irrespective of the fact that any one or
more  provisions,  sections, subsections, sentences, clauses, phrases or
words, or any of their applications, were  to  be  declared  unconstitu-
tional.
  S  3.  Article  41 of the public health law is amended by adding a new
title 5-B to read as follows:
                                TITLE V-B
                  PAIN-CAPABLE UNBORN CHILD PROTECTION
SECTION 4164-A. DEFINITIONS.
        4164-B. PROTECTION OF UNBORN CHILD CAPABLE OF FEELING PAIN  FROM
                  ABORTION.
        4164-C. REPORTING.
        4164-D. CRIMINAL PENALTIES.
        4164-E. CIVIL REMEDIES.
        4164-F. PROTECTION OF PRIVACY IN COURT PROCEEDINGS.
        4164-G. LITIGATION DEFENSE FUND.
        4164-H. CONSTRUCTION.
  S 4164-A. DEFINITIONS. AS USED IN THIS TITLE:
  1.  "ABORTION"  MEANS THE USE OR PRESCRIPTION OF ANY INSTRUMENT, MEDI-
CINE, DRUG, OR ANY OTHER SUBSTANCE OR DEVICE:
  (A) TO INTENTIONALLY KILL THE UNBORN CHILD OF  A  WOMAN  KNOWN  TO  BE
PREGNANT; OR
  (B)  TO  INTENTIONALLY  TERMINATE THE PREGNANCY OF A WOMAN KNOWN TO BE
PREGNANT, WITH AN INTENTION OTHER THAN:

A. 8078                             4

  (I) AFTER VIABILITY TO PRODUCE A LIVE BIRTH AND PRESERVE THE LIFE  AND
HEALTH OF THE CHILD BORN ALIVE; OR
  (II) TO REMOVE A DEAD UNBORN CHILD.
  2.  "ATTEMPT",  WITH RESPECT TO AN ABORTION, MEANS CONDUCT THAT, UNDER
THE CIRCUMSTANCES AS THE  ACTOR  BELIEVES  THEM  TO  BE,  CONSTITUTES  A
SUBSTANTIAL STEP IN A COURSE OF CONDUCT PLANNED TO CULMINATE IN PERFORM-
ING AN ABORTION IN THIS STATE IN VIOLATION OF THIS TITLE.
  3. "FERTILIZATION" MEANS THE FUSION OF HUMAN SPERMATOZOON WITH A HUMAN
OVUM.
  4.   "MEDICAL EMERGENCY" MEANS A CONDITION THAT, IN REASONABLE MEDICAL
JUDGMENT, SO COMPLICATES THE MEDICAL CONDITION  OF  THE  PREGNANT  WOMAN
THAT  IT  NECESSITATES  AN  IMMEDIATE  ABORTION OF HER PREGNANCY WITHOUT
FIRST DETERMINING POST-FERTILIZATION AGE TO AVERT HER DEATH OR FOR WHICH
THE DELAY NECESSARY TO  DETERMINE  POST-FERTILIZATION  AGE  WILL  CREATE
SERIOUS  RISK  OF  SUBSTANTIAL AND IRREVERSIBLE PHYSICAL IMPAIRMENT OF A
MAJOR BODILY FUNCTION, NOT INCLUDING PSYCHOLOGICAL OR  EMOTIONAL  CONDI-
TIONS.  A  CONDITION MAY NOT BE DEEMED A MEDICAL EMERGENCY IF BASED ON A
CLAIM OR DIAGNOSIS THAT THE  WOMAN  WILL  ENGAGE  IN  CONDUCT  THAT  SHE
INTENDS  TO RESULT IN HER DEATH OR IN SUBSTANTIAL AND IRREVERSIBLE PHYS-
ICAL IMPAIRMENT OF A MAJOR BODILY FUNCTION.
  5. "PHYSICIAN" MEANS  A  PERSON  LICENSED  TO  PRACTICE  MEDICINE  AND
SURGERY  OR  OSTEOPATHIC  MEDICINE  AND  SURGERY,  OR  OTHERWISE LEGALLY
AUTHORIZED TO PERFORM AN ABORTION.
  6. "POST-FERTILIZATION AGE" MEANS THE  AGE  OF  THE  UNBORN  CHILD  AS
CALCULATED FROM THE FUSION OF A HUMAN SPERMATOZOON WITH A HUMAN OVUM.
  7.  "PROBABLE  POST-FERTILIZATION AGE OF THE UNBORN CHILD" MEANS WHAT,
IN REASONABLE MEDICAL JUDGMENT, WILL WITH REASONABLE PROBABILITY BE  THE
POST-FERTILIZATION  AGE  OF THE UNBORN CHILD AT THE TIME THE ABORTION IS
PLANNED TO BE PERFORMED OR INDUCED.
  8. "REASONABLE MEDICAL JUDGMENT" MEANS A MEDICAL JUDGMENT  THAT  WOULD
BE  MADE BY A REASONABLY PRUDENT PHYSICIAN, KNOWLEDGEABLE ABOUT THE CASE
AND THE TREATMENT POSSIBILITIES WITH RESPECT TO THE  MEDICAL  CONDITIONS
INVOLVED.
  9.  "SERIOUS  HEALTH  RISK TO THE UNBORN CHILD'S MOTHER" MEANS THAT IN
REASONABLE MEDICAL JUDGMENT SHE HAS A CONDITION THAT SO COMPLICATES  HER
MEDICAL  CONDITION THAT IT NECESSITATES THE ABORTION OF HER PREGNANCY TO
AVERT HER DEATH OR TO AVERT SERIOUS RISK OF SUBSTANTIAL AND IRREVERSIBLE
PHYSICAL IMPAIRMENT OF A MAJOR BODILY FUNCTION, NOT INCLUDING PSYCHOLOG-
ICAL OR EMOTIONAL CONDITIONS. NO GREATER RISK MAY BE DETERMINED TO EXIST
IF IT IS BASED ON A CLAIM OR DIAGNOSIS THAT THE  WOMAN  WILL  ENGAGE  IN
CONDUCT  WHICH  SHE INTENDS TO RESULT IN HER DEATH OR IN SUBSTANTIAL AND
IRREVERSIBLE PHYSICAL IMPAIRMENT OF A MAJOR BODILY FUNCTION.
  10. "UNBORN CHILD" MEANS AN INDIVIDUAL ORGANISM OF  THE  SPECIES  HOMO
SAPIENS,  BEGINNING  AT  FERTILIZATION,  UNTIL  THE  POINT OF BEING BORN
ALIVE.
  11. "WOMAN" MEANS A FEMALE HUMAN BEING WHETHER OR NOT SHE HAS  REACHED
THE AGE OF MAJORITY.
  S  4164-B.  PROTECTION  OF  UNBORN  CHILD CAPABLE OF FEELING PAIN FROM
ABORTION.
  1. NO PERSON SHALL PERFORM OR INDUCE, OR ATTEMPT TO PERFORM OR INDUCE,
AN ABORTION OF AN UNBORN CHILD CAPABLE OF FEELING PAIN UNLESS  NECESSARY
TO PREVENT SERIOUS HEALTH RISK TO THE UNBORN CHILD'S MOTHER.
  2. AN UNBORN CHILD SHALL BE DEEMED CAPABLE OF FEELING PAIN WHEN IT HAS
BEEN  DETERMINED,  BY THE PHYSICIAN PERFORMING OR INDUCING OR ATTEMPTING
TO PERFORM OR INDUCE THE ABORTION OR BY  ANOTHER  PHYSICIAN  UPON  WHOSE

A. 8078                             5

DETERMINATION  THAT  PHYSICIAN RELIES, THAT THE PROBABLE POST-FERTILIZA-
TION AGE OF THE WOMAN'S UNBORN CHILD IS TWENTY OR MORE WEEKS.
  3.  EXCEPT  IN  THE  CASE  OF  A MEDICAL EMERGENCY, NO ABORTION MAY BE
PERFORMED OR INDUCED OR BE ATTEMPTED TO BE PERFORMED OR  INDUCED  UNLESS
THE  PHYSICIAN  PERFORMING OR INDUCING IT HAS FIRST MADE A DETERMINATION
OF THE PROBABLE POST-FERTILIZATION AGE OF THE  UNBORN  CHILD  OR  RELIED
UPON  SUCH  A  DETERMINATION  MADE  BY ANOTHER PHYSICIAN. IN MAKING THIS
DETERMINATION, THE PHYSICIAN SHALL MAKE SUCH INQUIRIES OF THE WOMAN  AND
PERFORM  OR CAUSE TO BE PERFORMED SUCH MEDICAL EXAMINATIONS AND TESTS AS
A REASONABLY PRUDENT PHYSICIAN, KNOWLEDGEABLE ABOUT  THE  CASE  AND  THE
MEDICAL  CONDITIONS  INVOLVED,  WOULD  CONSIDER  NECESSARY TO PERFORM IN
MAKING AN ACCURATE DIAGNOSIS WITH RESPECT TO POST-FERTILIZATION AGE.
  4. WHEN AN ABORTION OF AN UNBORN CHILD  CAPABLE  OF  FEELING  PAIN  IS
NECESSARY  TO  PREVENT SERIOUS HEALTH RISK TO THE UNBORN CHILD'S MOTHER,
THE PHYSICIAN SHALL TERMINATE THE PREGNANCY  IN  THE  MANNER  WHICH,  IN
REASONABLE  MEDICAL  JUDGMENT,  PROVIDES  THE  BEST  OPPORTUNITY FOR THE
UNBORN CHILD TO SURVIVE, UNLESS, IN REASONABLE MEDICAL JUDGMENT,  TERMI-
NATION  OF THE PREGNANCY IN THAT MANNER WOULD POSE A GREATER RISK EITHER
OF THE DEATH OF THE PREGNANT WOMAN OR THE SUBSTANTIAL  AND  IRREVERSIBLE
PHYSICAL IMPAIRMENT OF A MAJOR BODILY FUNCTION, NOT INCLUDING PSYCHOLOG-
ICAL  OR  EMOTIONAL  CONDITIONS, OF THE WOMAN THAN WOULD OTHER AVAILABLE
METHODS. NO GREATER RISK MAY BE DETERMINED TO EXIST IF IT IS BASED ON  A
CLAIM  OR  DIAGNOSIS  THAT  THE  WOMAN  WILL ENGAGE IN CONDUCT WHICH SHE
INTENDS TO RESULT IN HER DEATH OR IN SUBSTANTIAL AND IRREVERSIBLE  PHYS-
ICAL IMPAIRMENT OF A MAJOR BODILY FUNCTION.
  S  4164-C.  REPORTING.  1.  ANY  PHYSICIAN  WHO PERFORMS OR INDUCES OR
ATTEMPTS TO PERFORM OR INDUCE AN ABORTION SHALL REPORT  TO  THE  DEPART-
MENT, ON A SCHEDULE AND IN ACCORDANCE WITH FORMS AND REGULATIONS ADOPTED
AND PROMULGATED BY THE DEPARTMENT, THAT INCLUDE:
  (A) POST-FERTILIZATION AGE:
  (I)  IF  A  DETERMINATION OF PROBABLE POST-FERTILIZATION AGE WAS MADE,
WHETHER ULTRASOUND WAS EMPLOYED IN MAKING  THE  DETERMINATION,  AND  THE
WEEK OF PROBABLE POST-FERTILZATION AGE DETERMINED.
  (II)  IF  A  DETERMINATION  OF PROBABLE POST-FERTILIZATION AGE WAS NOT
MADE, THE BASIS OF THE DETERMINATION THAT A MEDICAL EMERGENCY EXISTED.
  (B) METHOD OF ABORTION: WHICH OF THE FOLLOWING WAS EMPLOYED:
  (I)   MEDICATION   ABORTION   (SUCH   AS,   BUT   NOT   LIMITED    TO,
MIFEPRISTONE/MISOPROSTOL OR METHOTREXATE/MISOPROSTOL);
  (II) MANUAL VACUUM ASPIRATION;
  (III) ELECTRICAL VACUUM ASPIRATION;
  (IV) DILATION AND EVACUATION;
  (V) COMBINED INDUCTION ABORTION AND DILATION AND EVACUATION;
  (VI) INDUCTION ABORTION WITH PROSTAGLANDINS;
  (VII)  INDUCTION  ABORTION  WITH INTRA-AMNIOTIC INSTILLATION (SUCH AS,
BUT NOT LIMITED TO, SALINE OR UREA);
  (VIII) INDUCTION ABORTION, OTHER; OR
  (IX) INTACT DILATION AND EXTRACTION (PARTIAL-BIRTH)
  (C) WHETHER AN INTRA-FETAL INJECTION WAS USED IN AN ATTEMPT TO  INDUCE
FETAL DEMISE (SUCH AS, BUT NOT LIMITED TO, INTRAFETAL POTASSIUM CHLORIDE
OR DIGOXIN);
  (D) AGE AND RACE OF THE PATIENT;
  (E)  IF THE UNBORN CHILD WAS DEEMED CAPABLE OF EXPERIENCING PAIN UNDER
SECTION 4164-B OF THIS TITLE, THE BASIS OF THE  DETERMINATION  THAT  THE
PREGNANT  WOMAN  HAD A CONDITION WHICH SO COMPLICATED HER MEDICAL CONDI-
TION AS TO NECESSITATE THE ABORTION OF HER PREGNANCY TO AVERT HER  DEATH
OR  TO  AVERT  SERIOUS  RISK  OF  SUBSTANTIAL  AND IRREVERSIBLE PHYSICAL

A. 8078                             6

IMPAIRMENT OF A MAJOR BODILY FUNCTION, NOT  INCLUDING  PSYCHOLOGICAL  OR
EMOTIONAL CONDITIONS;
  (F)  IF THE UNBORN CHILD WAS DEEMED CAPABLE OF EXPERIENCING PAIN UNDER
SECTION FORTY-ONE HUNDRED SIXTY-FOUR-B OF THIS TITLE, WHETHER OR NOT THE
METHOD OF ABORTION USED WAS ONE THAT, IN  REASONABLE  MEDICAL  JUDGMENT,
PROVIDED  THE  BEST  OPPORTUNITY FOR THE UNBORN CHILD TO SURVIVE AND, IF
SUCH A METHOD WAS NOT USED, THE BASIS OF THE DETERMINATION  THAT  TERMI-
NATION  OF THE PREGNANCY IN THAT MANNER WOULD POSE A GREATER RISK EITHER
OF THE DEATH OF THE PREGNANT WOMAN OR OF THE SUBSTANTIAL  AND  IRREVERS-
IBLE  PHYSICAL  IMPAIRMENT  OF  A  MAJOR  BODILY FUNCTION, NOT INCLUDING
PSYCHOLOGICAL OR EMOTIONAL CONDITIONS, OF THE  WOMAN  THAN  WOULD  OTHER
AVAILABLE METHODS.
  2. REPORTS REQUIRED BY SUBDIVISION ONE OF THIS SECTION MAY NOT CONTAIN
THE  NAME  OR THE ADDRESS OF THE PATIENT WHOSE PREGNANCY WAS TERMINATED,
NOR MAY  THE  REPORT  CONTAIN  ANY  OTHER  INFORMATION  IDENTIFYING  THE
PATIENT,  EXCEPT  THAT EACH REPORT SHALL CONTAIN A UNIQUE MEDICAL RECORD
IDENTIFYING NUMBER, TO ENABLE  MATCHING  THE  REPORT  TO  THE  PATIENT'S
MEDICAL  RECORDS. THESE REPORTS SHALL BE MAINTAINED IN STRICT CONFIDENCE
BY THE DEPARTMENT, SHALL NOT BE AVAILABLE  FOR  PUBLIC  INSPECTION,  AND
SHALL NOT BE MADE AVAILABLE EXCEPT:
  (A)  TO  THE  ATTORNEY GENERAL OR A DISTRICT ATTORNEY WITH APPROPRIATE
JURISDICTION PURSUANT TO A CRIMINAL INVESTIGATION;
  (B) TO THE ATTORNEY GENERAL OR A DISTRICT ATTORNEY PURSUANT TO A CIVIL
INVESTIGATION OF THE GROUNDS  FOR  AN  ACTION  UNDER  SECTION  FORTY-ONE
HUNDRED SIXTY-FOUR-E OF THIS ACT; OR
  (C)  PURSUANT  TO  COURT  ORDER  IN  AN ACTION UNDER SECTION FORTY-ONE
HUNDRED SIXTY-FOUR-E OF THIS TITLE.
  3. BY JUNE THIRTIETH OF EACH YEAR THE DEPARTMENT SHALL ISSUE A  PUBLIC
REPORT PROVIDING STATISTICS FOR THE PREVIOUS CALENDAR YEAR COMPILED FROM
ALL  OF THE REPORTS COVERING THAT YEAR SUBMITTED IN ACCORDANCE WITH THIS
SECTION FOR EACH OF THE ITEMS LISTED IN SUBDIVISION ONE OF THIS SECTION.
EACH REPORT SHALL ALSO PROVIDE THE STATISTICS FOR ALL PREVIOUS  CALENDAR
YEARS  DURING  WHICH THIS SECTION WAS IN EFFECT, ADJUSTED TO REFLECT ANY
ADDITIONAL INFORMATION FROM LATE OR CORRECTED  REPORTS.  THE  DEPARTMENT
SHALL  TAKE  CARE TO ENSURE THAT NONE OF THE INFORMATION INCLUDED IN THE
PUBLIC REPORTS COULD REASONABLY LEAD TO THE IDENTIFICATION OF ANY  PREG-
NANT WOMAN UPON WHOM AN ABORTION WAS PERFORMED, INDUCED, OR ATTEMPTED.
  4.  ANY  PHYSICIAN  WHO  FAILS TO SUBMIT A REPORT BY THE END OF THIRTY
DAYS FOLLOWING THE DUE DATE ESTABLISHED BY REGULATION SHALL  BE  SUBJECT
TO A LATE FEE OF ONE THOUSAND DOLLARS ($1,000) FOR EACH ADDITIONAL THIR-
TY-DAY  PERIOD  OR PORTION OF A THIRTY-DAY PERIOD THE REPORT IS OVERDUE.
ANY PHYSICIAN REQUIRED TO REPORT IN ACCORDANCE WITH THIS ACT WHO HAS NOT
SUBMITTED A REPORT, OR HAS SUBMITTED ONLY  AN  INCOMPLETE  REPORT,  MORE
THAN SIX MONTHS FOLLOWING THE DUE DATE, MAY, IN AN ACTION BROUGHT BY THE
DEPARTMENT, BE DIRECTED BY A COURT OF COMPETENT JURISDICTION TO SUBMIT A
COMPLETE  REPORT  WITHIN A PERIOD STATED BY COURT ORDER OR BE SUBJECT TO
CIVIL CONTEMPT. INTENTIONAL OR RECKLESS  FAILURE  BY  ANY  PHYSICIAN  TO
CONFORM  TO  ANY  REQUIREMENT  OF  THIS SECTION CONSTITUTES PROFESSIONAL
MISCONDUCT PURSUANT TO TITLE TWO-A OF ARTICLE TWO OF THIS CHAPTER.
  S 4164-D. CRIMINAL PENALTIES.  ANY PERSON WHO INTENTIONALLY  OR  RECK-
LESSLY  PERFORMS OR INDUCES OR ATTEMPTS TO PERFORM OR INDUCE AN ABORTION
IN VIOLATION OF THIS TITLE SHALL BE GUILTY OF A FELONY. NO  PENALTY  MAY
BE  ASSESSED  AGAINST  THE  WOMAN UPON WHOM THE ABORTION IS PERFORMED OR
INDUCED OR ATTEMPTED TO BE PERFORMED OR INDUCED.
  S 4164-E. CIVIL REMEDIES. 1. ANY WOMAN UPON WHOM AN ABORTION HAS  BEEN
PERFORMED  OR  INDUCED  IN VIOLATION OF THIS TITLE, OR THE FATHER OF THE

A. 8078                             7

UNBORN CHILD WHO WAS THE SUBJECT OF SUCH AN ABORTION,  MAY  MAINTAIN  AN
ACTION  AGAINST  THE  PERSON  WHO  PERFORMED  OR INDUCED THE ABORTION IN
INTENTIONAL OR RECKLESS VIOLATION OF THIS TITLE FOR ACTUAL AND  PUNITIVE
DAMAGES. ANY WOMAN UPON WHOM AN ABORTION HAS BEEN ATTEMPTED IN VIOLATION
OF THIS TITLE MAY MAINTAIN AN ACTION AGAINST THE PERSON WHO ATTEMPTED TO
PERFORM  OR  INDUCE THE ABORTION IN AN INTENTIONAL OR RECKLESS VIOLATION
OF THIS TITLE FOR ACTUAL AND PUNITIVE DAMAGES.
  2. A CAUSE OF ACTION FOR INJUNCTIVE RELIEF AGAINST ANY PERSON WHO  HAS
INTENTIONALLY OR RECKLESSLY VIOLATED THIS TITLE MAY BE MAINTAINED (I) BY
THE WOMAN UPON WHOM AN ADOPTION WAS PERFORMED OR INDUCED OR ATTEMPTED TO
BE  PERFORMED  OR INDUCED IN VIOLATION OF THIS TITLE; (II) BY ANY PERSON
WHO IS THE SPOUSE, PARENT, SIBLING OR  GUARDIAN  OF,  OR  A  CURRENT  OR
FORMER LICENSED HEALTH CARE PROVIDER OF, THE WOMAN UPON WHOM AN ABORTION
HAS BEEN PERFORMED OR INDUCED OR ATTEMPTED TO BE PERFORMED OR INDUCED IN
VIOLATION  OF THIS TITLE; (III) BY A PROSECUTING ATTORNEY WITH APPROPRI-
ATE JURISDICTION; OR (IV) BY THE ATTORNEY GENERAL. THE INJUNCTION  SHALL
PREVENT  THE ABORTION PROVIDER FROM PERFORMING OR INDUCING OR ATTEMPTING
TO PERFORM OR INDUCE FURTHER ABORTIONS IN VIOLATION  OF  THIS  TITLE  IN
THIS STATE.
  3.  IF  JUDGMENT  IS  RENDERED  IN FAVOR OF THE PLAINTIFF IN AN ACTION
DESCRIBED IN THIS SECTION, THE COURT SHALL ALSO RENDER  JUDGMENT  FOR  A
REASONABLE  ATTORNEY'S FEE IN FAVOR OF THE PLAINTIFF AGAINST THE DEFEND-
ANT.
  4. IF JUDGMENT IS RENDERED IN FAVOR OF THE  DEFENDANT  AND  THE  COURT
FINDS  THE  PLAINTIFF'S SUIT WAS FRIVOLOUS AND BROUGHT IN BAD FAITH, THE
COURT SHALL ALSO RENDER JUDGMENT FOR  A  REASONABLE  ATTORNEY'S  FEE  IN
FAVOR OF THE DEFENDANT AGAINST THE PLAINTIFF.
  5. NO DAMAGES OR ATTORNEY'S FEE MAY BE ASSESSED AGAINST THE WOMAN UPON
WHOM  AN  ABORTION WAS PERFORMED OR INDUCED OR ATTEMPTED TO BE PERFORMED
OR INDUCED EXCEPT IN ACCORDANCE WITH SUBDIVISION FOUR OF THIS SECTION.
  S 4164-F. PROTECTION OF PRIVACY IN COURT PROCEEDINGS. IN  EVERY  CIVIL
OR  CRIMINAL  PROCEEDING  OR  ACTION BROUGHT UNDER THIS TITLE, THE COURT
SHALL RULE WHETHER THE ANONYMITY OF ANY WOMAN UPON WHOM AN ABORTION  HAS
BEEN  PERFORMED OR INDUCED OR ATTEMPTED TO BE PERFORMED OR INDUCED SHALL
BE PRESERVED FROM PUBLIC DISCLOSURE IF SHE DOES NOT GIVE HER CONSENT  TO
SUCH  DISCLOSURE. THE COURT SHALL MAKE SUCH A RULING AND, UPON DETERMIN-
ING THAT HER ANONYMITY SHOULD BE PRESERVED, SHALL ISSUE  ORDERS  TO  THE
PARTIES,  WITNESSES,  AND  COUNSEL  AND  SHALL DIRECT THE SEALING OF THE
RECORD AND EXCLUSION OF INDIVIDUALS FROM COURTROOMS OR HEARING ROOMS  TO
THE  EXTENT  NECESSARY TO SAFEGUARD HER IDENTITY FROM PUBLIC DISCLOSURE.
EACH SUCH ORDER  SHALL  BE  ACCOMPANIED  BY  SPECIFIC  WRITTEN  FINDINGS
EXPLAINING  WHY  THE  ANONYMITY  OF  THE  WOMAN SHOULD BE PRESERVED FROM
PUBLIC DISCLOSURE, WHY THE ORDER IS ESSENTIAL TO THAT END, HOW THE ORDER
IS NARROWLY TAILORED TO SERVE THAT INTEREST, AND WHY NO REASONABLE  LESS
RESTRICTIVE ALTERNATIVE EXISTS. IN THE ABSENCE OF WRITTEN CONSENT OF THE
WOMAN  UPON  WHOM AN ABORTION HAS BEEN PERFORMED OR INDUCED OR ATTEMPTED
TO BE PERFORMED OR INDUCED, ANYONE, OTHER THAN A  PUBLIC  OFFICIAL,  WHO
BRINGS  AN  ACTION  UNDER SECTION FORTY-ONE HUNDRED SIXTY-FOUR-E OF THIS
TITLE SHALL DO SO UNDER A PSEUDONYM. THIS SECTION MAY NOT  BE  CONSTRUED
TO  CONCEAL  THE  IDENTITY  OF  THE  PLAINTIFF  OR OF WITNESSES FROM THE
DEFENDANT OR FROM ATTORNEY FOR THE DEFENDANT.
  S 4164-G. LITIGATION DEFENSE FUND.  1. THERE IS HEREBY ESTABLISHED  IN
THE  JOINT CUSTODY OF THE STATE COMPTROLLER AND THE DEPARTMENT A SPECIAL
FUND KNOWN AS THE PAIN-CAPABLE UNBORN CHILD  PROTECTION  ACT  LITIGATION
FUND  FOR  THE  PURPOSE  OF  PROVIDING  FUNDS  TO  PAY FOR ANY COSTS AND

A. 8078                             8

EXPENSES INCURRED BY THE STATE ATTORNEY GENERAL IN RELATION  TO  ACTIONS
SURROUNDING DEFENSE OF THIS LAW.
  2.  THE  FUND SHALL CONSIST OF: (A) APPROPRIATIONS MADE TO THE ACCOUNT
BY THE LEGISLATURE; (B) ANY DONATIONS, GIFTS,  OR  GRANTS  MADE  TO  THE
ACCOUNT.
  3.  THE  FUND SHALL RETAIN THE INTEREST INCOME DERIVED FROM THE MONEYS
CREDITED TO THE FUND.
  S 4165-H. CONSTRUCTION. THIS ACT SHALL NOT BE CONSTRUED TO REPEAL,  BY
IMPLICATION  OR  OTHERWISE,  ANY  OTHERWISE  APPLICABLE PROVISION OF LAW
REGULATING OR RESTRICTING ABORTION. AN ABORTION THAT COMPLIES WITH  THIS
TITLE  BUT VIOLATES THE PROVISIONS OF ANY OTHERWISE APPLICABLE PROVISION
OF LAW SHALL BE DEEMED  UNLAWFUL  AS  PROVIDED  IN  SUCH  PROVISION.  AN
ABORTION  THAT  COMPLIES WITH THE PROVISIONS OF ANY OTHERWISE APPLICABLE
PROVISION OF LAW REGULATING OR RESTRICTING ABORTION  BUT  VIOLATES  THIS
TITLE SHALL BE DEEMED UNLAWFUL AS PROVIDED IN THIS TITLE. IF SOME OR ALL
OF  THE  PROVISIONS  OF  THIS  TITLE ARE EVER TEMPORARILY OR PERMANENTLY
RESTRAINED OR ENJOINED BY JUDICIAL ORDER, ALL OTHER  PROVISIONS  OF  LAW
REGULATING  OR  RESTRICTING  ABORTION  SHALL  BE ENFORCED AS THOUGH SUCH
RESTRAINED OR ENJOINED PROVISIONS HAD NOT BEEN ADOPTED; PROVIDED, HOWEV-
ER, THAT WHENEVER SUCH  TEMPORARY  OR  PERMANENT  RESTRAINING  ORDER  OF
INJUNCTION  IS  STAYED OR DISSOLVED, OR OTHERWISE CEASES TO HAVE EFFECT,
SUCH PROVISIONS SHALL HAVE FULL FORCE AND EFFECT.
  S 4. This act shall take effect immediately.